DIFFERENCE BETWEEN FIR REGISTRATION UNDER S. 154 CrPC & 173 BNSS: SUPREME COURT

The Supreme Court recently clarified the distinction between the registration of an FIR and the provisions governing the conduct of preliminary investigations under the CrPC and the Bharatiya Nyaya Sanhita (BNSS). The Court found that while Section 173(1) of the BNSS is similar to Section 154 of the CrPC regarding the recording of information, Section 173(3) introduces a significant deviation by allowing a preliminary investigation before registering an FIR in specific cases.

Key Distinctions Between CrPC and BNSS Provisions

1. Mandatory Registration of FIR Under Section 154 of the CrPC

• According to Section 154(1) of the CrPC, any information relating to a cognizable offense must be recorded in writing by the officer in charge of a police station.
• The information must be read over to the informant, signed, and entered in a designated register.
• The Supreme Court emphasized that this section does not provide for a preliminary investigation.

2. FIR Registration Under Section 173(1) of the BNSS

• Section 173(1) of the BNSS mirrors Section 154 of the CrPC, requiring that every cognizable offense, whether reported orally or electronically, must be recorded, signed, and entered in the register.
• However, an important distinction arises with Section 173(3), which permits a preliminary investigation in certain cases before FIR registration.

Preliminary Investigation: A Key Difference

1. No Preliminary Investigation Under CrPC

The Supreme Court, referring to Lalita Kumari vs. State of Uttar Pradesh, clarified that:

• If information clearly discloses a cognizable offense, FIR registration is mandatory under Section 154 of the CrPC.
• A preliminary investigation is not allowed in such cases.
• Preliminary investigation can only be conducted in limited circumstances when the information does not immediately disclose a cognizable offense but suggests the need for further inquiry.

2. Preliminary Investigation Under Section 173(3) of the BNSS

• Section 173(3) permits a police officer to conduct a preliminary investigation before registering an FIR in cases where the offense is punishable with imprisonment between 3 and 7 years.
• This investigation requires prior approval from a senior officer (at least a Deputy Superintendent of Police).
• The purpose is to determine whether a prima facie case exists for further action.

Supreme Court’s Interpretation

The Supreme Court stated:

“Section 173(3) of the BNSS is an exception to Section 173(1). Under the cases covered by sub-section (3), a police officer has the discretion to conduct a preliminary investigation to determine whether there is a prima facie case, even if the information discloses a cognizable offense.”

• If a prima facie case is found, an FIR must be registered immediately.
• If not, the informant must be notified, with the option to approach the Superintendent of Police under Section 173(4) for further recourse.

Scope of Preliminary Investigation

1. Under CrPC

• The investigation is limited to verifying whether the information discloses a cognizable offense.

2. Under BNSS

• The officer has the discretion to conduct a preliminary investigation to establish a prima facie case before registering an FIR.
• This avoids the registration of FIRs in trivial cases where the offense is punishable by 3 to 7 years of imprisonment.

Protection of Fundamental Rights

The Supreme Court warned that failing to exercise discretion under Section 173(3) could lead to the registration of an FIR against individuals exercising their fundamental rights under Article 19(1)(a) (freedom of speech and expression).

1. Special Consideration for Section 196 of BNSS

• For offenses punishable with up to 3 years of imprisonment, the officer must read and interpret the words to determine whether they constitute a criminal offense.
• This process does not qualify as a permissible preliminary investigation under Section 173(1) of the BNSS.

The Court stated:

“The police officer receiving the information must read the written or spoken words and determine, based on their correct interpretation, whether the offense falls under Section 196. This reading or listening process is necessary to determine whether the content constitutes a cognizable offense. This is not equivalent to conducting a preliminary investigation under Section 173(1) of the BNSS.”

Conclusion

The Supreme Court’s ruling highlights a crucial distinction between the CrPC and BNSS in terms of FIR registration. While Section 154 of the CrPC mandates immediate FIR registration for cognizable offenses, Section 173(3) of the BNSS introduces a discretionary preliminary investigation in specific